Since my surprise on Friday I’ve spent a bit of time going over various materials. One large project I’ve undertaken is to start reviewing all the relevant case law. I’m doing this by researching the various decisions, including the Supreme Court of Canada (one decision), the Federal Court of Appeals (three decisions), and the Federal Court of Canada (100+). This is a lot of material to review, so I’m not really ready to start covering it here, but I will be – if for no other reason than to provide those who follow with a bit of a starting point in analyzing the material.
I also looked through the copy of my “immigration file” and found an interesting piece of e-mail recorded within the computer notes. To be honest, it probably should not have been included, because it looks to be privileged communications (attorney/client). However, the ATIP folks review everything before they send it out, so someone reviewed it and decided it wasn’t sensitive.
The applicant identified above has filed a judicial review application challenging the refusal to grant him a PR status on the basis of his medical inadmissibility. He is challenging this finding suggesting that fairness was breached in that his case did not benefit from a personalized assessment as established by Hilewitz . Could you please look at the attachments and confirm that the documents he has now introduced in his application before the Court, were also provided in support of his application for PR .
Your comments are appreciated. Of particular interest is whether or not he presented evidence to demonstrate that he could opt of British Colombia‘s publicly funded Medical plan.
It was this last paragraph that caught my attention as I was reading through this, because indeed, we did not present this information to the visa officer – why would we? Based upon the fairness letter, they asked about costs, not about BC’s coverage of those costs. While my attorney wrote up the letter to CIC regarding my case, I’m the one that had picked him based upon my own reading of the Companioni decision – I essentially used this as a check list for a well-formed plan.
Had the original fairness letter stated “Alternative payment plans will not be considered because BC pays 100% of the cost…” I would not have wasted my time presenting a plan to provide 100% coverage of the costs. instead, I would have argued “BC does allow an opt-out scheme”. The government will argue that the judge should not consider this because it was not before the visa officer at the time of the decision. However, it does underscore the fact the fairness letter itself was deficient because it did not clearly establish this concern of the officer.
At any rate, after thinking about it for a while i realize the government is in a trap of their own construction. By noting that they are aware of BC’s policy for payment for this particular class of drugs, which is not described on the BC MSP website or the Fair PharmaCare website, it would suggest they are familiar with subtle nuances of the BC medical services plan. Yet now they seem to be arguing that they don’t really know much about the provincial health program and it was my obligation to educate them about their own program.
How can you both be responsible for administering a program and simultaneously arguing you are not responsible for being knowledgeable about it? That would seem to run counter to natural justice – CIC is only responsible for knowing those bits of policy that allows them to reject you, particularly if you are someone with a disability.
The original letter doesn’t mention British Columbia’s policies at all. To pull this out at the end as part of the final rejection is indeed unfair because it never gave me an opportunity to respond.
It does seem to bolster the separation of powers argument as well. It is not good policy to allow CIC to “cherry pick” which parts of provincial health policy they have to understand. In Deol [2002 FCA 271] the court rejected the idea that CIC had to advise an applicant of a program that might have been beneficial to the applicant:
As for the visa officer’s alleged unfairness in not drawing Mr. Singh’s attention to Manitoba’s bonding program, Muldoon J. noted that visa applicants have the burden of establishing that they meet the qualifications for admission. Accordingly, the visa officer was not under a duty to advise Mr. Singh how he might overcome the “excessive demands” hurdle by drawing to his attention a program offered, not by Citizenship and Immigration Canada or any other federal agency, but by the Department of Health of the province of Manitoba. He also noted the paucity of evidence about the program, including its availability to Ms. Deol.
This does not say the visa officer was not under an obligation to understand the laws of the province, although it does imply this. But it does help strengthen the separation of powers argument – if CIC isn’t required to understand provincial health care law, why are they making decisions based upon it? How is this fair to the applicant?
I am feeling somewhat upbeat at this point. It would seem that CIC does not have a good track record when it comes to medical inadmissibility cases. I don’t have a complete number yet, but by the time I’m done I will. Right now though it is clear that CIC loses more cases than they win in this area – the Federal Court often finds their decisions come up deficient.
I’m hoping to tip that count a bit more.
- BC Health Care revisited (medicallyinadmissible.com)
- Health care, jobs top concerns for Canadians: poll (canada.com)